People v. Ellis, 2012–07219

• Decision Date: 28 November 2018
• Docket Number: 2012–07219,Ind. 2224/10
• Citation: 88 N.Y.S.3d 537,166 A.D.3d 993
• Parties: The PEOPLE, etc., respondent, v. Robert ELLIS, appellant.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 993

88 N.Y.S.3d 537

The PEOPLE, etc., respondent,

v.Robert ELLIS, appellant.

2012–07219

Ind. 2224/10

Supreme Court, Appellate Division, Second Department, New York.

Argued - April 9, 2018

November 28, 2018

Paul Skip Laisure, New York, N.Y. (William Kastin of counsel), for appellant, and appellant pro se.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott, Deborah E. Wassel, and Danielle O'Boyle of counsel), for respondent.

RUTH C. BALKIN, J.P., BETSY BARROS, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

ORDERED that the judgment is affirmed.

The defendant appeals from a judgment convicting him, inter alia, of the attempted second-degree murder, first-degree assault, and first-degree robbery of Carl Field. The defendant was prosecuted under a theory that he acted in concert with the codefendant, Dexter Bostic, who shot Field, and that the defendant drove the get-away car.

At the jury trial, a witness testified that on July 8, 2007, at about 3:30 a.m., while she was working as a prostitute on Sutphin Boulevard in Queens, the defendant picked her up in a Porsche, and they subsequently picked up Bostic. The witness further testified that Bostic had a black gun with a silencer, and that he and the defendant stated that they were looking for someone to rob. After the defendant and Bostic let the witness out of the car, she hurried down the street. Field and another witness testified that the Porsche came to a "screeching halt" on Sutphin Boulevard, and that Bostic got out of the vehicle and shot Field four times, hitting him in the leg. Bostic took Field's chain necklace before reentering the Porsche, which then sped away. The witness who had been riding with the defendant and Bostic testified that she heard the shots and phoned the defendant, who told her, "we just shot some[one]." The witness overheard Bostic in the background saying that they just "popped" someone. Phone records established that the witness made a 48–second call to the defendant shortly after the incident. The evidence at trial further established that Field underwent a seven-hour operation to put a metal rod into his knee, spent six months in a hospital, and could not walk for two years.

The defendant argues in his main brief on appeal that (1) he was denied his right to counsel of his choice, (2) his for-cause challenge to a prospective juror was improperly denied, (3) he was deprived of a fair trial because he was made to appear at voir dire and subsequent trial proceedings in prison clothing, (4) the Supreme Court improperly admitted into evidence his videotaped statement in violation of his right to counsel, and (5) the prosecutor's comments in summation deprived him of a fair trial.

The defendant contends that he was denied the right to his choice of counsel because the Supreme Court denied his request to appoint the 18–B attorney who represented him in an unrelated criminal case that had concluded two years prior. We agree with our dissenting colleague that this issue is not properly raised on direct appeal, but rather should be raised in a CPL 440.10 motion to vacate the judgment of conviction because the facts supporting the defendant's claim are dehors the record (see People v. Jackson, 29 N.Y.3d 18, 52 N.Y.S.3d 63, 74 N.E.3d 302 ; People v. Geritano, 158 A.D.3d 724, 71 N.Y.S.3d 531 ).

The Supreme Court properly denied the defendant's for-cause challenge to a prospective juror who was a retired school security officer for the New York City Police Department (hereinafter NYPD). Coincidentally, this prospective juror's son had previously been excused as a prospective juror in this case because that son was an NYPD sergeant and knew two of the witnesses in the case. The son indicated in his voir dire that he would have a problem being fair, and he was excused on consent of both sides. However, upon voir dire questioning, the retired school security officer unequivocally stated that he could be impartial. After defense counsel challenged this prospective juror for cause, the court conducted its own questioning. The retired school security officer stated that he had not heard anything about the case, and that he had not and would not discuss the case with his son, and he reaffirmed that he could be fair and impartial (see People v. Johnson, 94 N.Y.2d 600, 709 N.Y.S.2d 134, 730 N.E.2d 932 ; People v. Culhane, 33 N.Y.2d 90, 350 N.Y.S.2d 381, 305 N.E.2d 469 ). Contrary to the defendant's contention and our dissenting colleague's conclusion, the mere fact that the retired school security officer was related to a prospective juror who was excused for cause does not establish an implicit bias (cf. People v. Furey, 18 N.Y.3d 284, 938 N.Y.S.2d 277, 961 N.E.2d 668 ; People v. Powell, 153 A.D.3d 1034, 61 N.Y.S.3d 362 ; People v. Guldi, 152 A.D.3d 540, 59 N.Y.S.3d 385 ; People v. Montford, 145 A.D.3d 1344, 45 N.Y.S.3d 598 ; People v. Bedard, 132 A.D.3d 1070, 18 N.Y.S.3d 217 ; People v. Hamilton, 127 A.D.3d 1243, 6 N.Y.S.3d 707 ; People v. Greenfield 112 A.D.3d 1226, 977 N.Y.S.2d 486 ). Thus, the expurgatory oath of the retired school security officer was sufficient to establish his impartiality. There is no evidence in this record that the retired school security officer had a relationship with the defendant, the victim, a prospective witness, or counsel so as to support a claim of implicit bias (cf. People v. Furey, 18 N.Y.3d at 287, 938 N.Y.S.2d 277, 961 N.E.2d 668 ).

Contrary to the conclusion of our dissenting colleague, the defendant's contention that he was deprived of a fair trial because he allegedly wore prison garb for 3 days of jury selection and more than 5 days of witness testimony during the 18–day trial is unpreserved for appellate review. At no point during jury selection or the first days of testimony did defense counsel or the defendant make an application to adjourn or object to the proceedings in order to obtain civilian clothes (see CPL 470.05[2] ; Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126, People v. Shaw, 126 A.D.3d 1016, 1017, 6 N.Y.S.3d 119 ; People v. Bullock, 28 A.D.3d 673, 673, 813 N.Y.S.2d 223 ). In any event, the contention is without merit. While "the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes" ( Estelle v. Williams, 425 U.S. at 512, 96 S.Ct. 1691 ), the record here establishes that the Supreme Court gave the defendant multiple pretrial adjournments during which he could have obtained civilian clothes, but he failed to do so. Further, the state-issued clothing that the defendant wore bore no markings indicating that it was prison clothing (see People v. Johnston, 43 A.D.3d 1273, 842 N.Y.S.2d 837 ; People v. Everson, 262 A.D.2d 1059, 694 N.Y.S.2d 252 ; People v. Reid, 137 A.D.2d 844, 525 N.Y.S.2d 307 ). Ultimately, the defendant was provided a civilian suit by his counsel, and there was no explanation as to why such clothing could not have been provided earlier in the proceedings.

The defendant correctly contends that his videotaped statement was improperly admitted in violation of his right to counsel (see People v. Lopez, 16 N.Y.3d 375, 923 N.Y.S.2d 377, 947 N.E.2d 1155 ; People v. Borukhova, 89 A.D.3d 194, 931 N.Y.S.2d 349 ). However, the admission of the defendant's statement constituted harmless error because the evidence of his guilt, without reference to the statement, was overwhelming, and there was no reasonable possibility that the jury would have acquitted him had it not been for the constitutional error (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Borukhova, 89 A.D.3d 194, 931 N.Y.S.2d 349 ; People v. Payne, 41 A.D.3d 512, 838 N.Y.S.2d 123 ).

The defendant failed to preserve for appellate review his contention that certain of the prosecutor's summation comments deprived him of a fair trial (see CPL 470.05[2] ). In any event, the prosecutor's remarks in summation, for the most part, constituted fair comment on the evidence and the inferences to be drawn therefrom (see People v. Fuhrtz, 115 A.D.3d 760, 981 N.Y.S.2d 611 ; People v. Birot, 99 A.D.3d 933, 952 N.Y.S.2d 293 ; People v. Guevara–Carrero, 92 A.D.3d 693, 938 N.Y.S.2d 185 ; People v. McHarris, 297 A.D.2d 824, 825, 748 N.Y.S.2d 57 ), or were fair response to defense counsel's comments during summation (see People v. Adamo, 309 A.D.2d 808, 765 N.Y.S.2d 651 ; People v. Clark, 222 A.D.2d 446, 634 N.Y.S.2d 714 ; People v. Vaughn, 209 A.D.2d 459, 619 N.Y.S.2d 573 ), and any improper statements "were not so flagrant or pervasive" as to deprive the defendant of a fair trial ( People v. Almonte, 23 A.D.3d 392, 394, 806 N.Y.S.2d 95 ; see People v. Svanberg, 293 A.D.2d 555, 739 N.Y.S.2d 837 ).

Contrary to the defendant's contention, raised in his pro se supplemental brief, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), there was legally sufficient evidence to establish the defendant's guilt of attempted murder in the second degree, assault in the first degree (two counts), robbery in the first degree (two counts), criminal possession of a weapon in the second degree (two counts), and criminal possession of stolen property in the fifth degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053; People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt as to those crimes was...